Regina v Kenasi [2008] SBHC 105; HCSI-CRC 221 of 2007 (12 December 2008)

IN THE HIGH COURT OF SOLOMON ISLANDS

Criminal Case No: 221 of 2007

REGINA

V

ELTON KENASI

(Naqiolevu, J)

Date of Hearing: 26 November 2008
Date of Ruling: 12 December 2008

For Appellant: Ms. L. Paulsen
For Respondent: Mr. H. Kausimae

APPEAL

Naqiolevu J.

1. The appellant on the 14th day of November 2006 was convicted following his plea of guilty by the Central Magistrate Court to the offence of Demanding Money with Menace contrary to Section 295 of the Penal Code.

2. The appellant was sentenced to a term of three and a half years imprisonment which was ordered to commence from the 19th of May 2006.
   

ENLARGEMENT OF TIME

3. The court having considered the application for enlargement of time in which to hear the application under S. 285 of the Criminal Procedure Code, the court consider there are good cause to allow the enlargement of time in this case and order accordingly.

Grounds of Appeal

4. The grounds of appeal are that the sentence was manifestly excessive. The Learned Magistrate erred in backdating the sentence to commence from the 19th of May 2006 instead of 19th of February 2006. This counsel submit is an error because it failed to take into consideration the appellant’s entitlement to remission.

5. The Magistrate erred by failing to consider the delay between the commission of the offence and the matter coming to trial as a mitigating factor, as a result the term imposed was manifestly excessive.

6. The Learned Magistrate failed to consider and apply the totality principle, and as a result the sentence was clearly excessive. The totality principle has long been accepted as good law by the courts in Solomon Islands.

7. The five counts that the appellant was sentenced for, could properly be described as forming a single transaction, which involved the drafting and sending of threatening letters from a group known as Malaitan Separatist Movement, and occurred over a 3 month period. The Learned Magistrate did not consider the fact that the offence were essentially similar in nature and interest and should therefore attract a concurrent term.

8. The Learned Magistrate counsel submit, by not applying the concurrent principle resulted in the total effect of the sentence imposed a crushing sentence on the appellant given the authorities establish that the general sentencing range for the offence of demanding with menace is between 10 months to 3.5 years.

Crown Response

9. Counsel for the respondent submit he had discussion with the defence counsel with the matter of the appeal, and submit appropriate for the court to consider what is reasonable. Further the period of 5 years is appropriate.

POWER OF HIGH COURT TO INTERFERE WITH SENTENCING DISCRETION

10. The power of the court to interfere with the sentencing discretion of the Lower Court is well settled. The authority for the proposition is the case of ([1])Kaimanisi –v- Regina where the court said,

"The appellant court will not interfere with the sentence imposed by the trial Judge in the exercise of his discretion unless it is shown to be manifestly excessive or manifestly inadequate either because the Judge has acted on where principle or has clearly overlooked or understated or overstated or misunderstood some salient features of the evidence. The question therefore is not whether this court would have imposed a different sentence to the one given but rather whether there was an error in the exercise of the sentencing discretion of the court below"

11. The Learned Magistrate in my view by ordering the fresh sentence of 3½ to commence from the 19th of May 2006 has erred. The court consider it would have been more appropriate for the Learned Magistrate to order a term of imprisonment to commence from any period he is now serving or period in remand rather than ordering a specific date.

The court is of the view that the appropriate calculation for the period of remand is within the powers the prison authority under the Regulation.

Delay

12. The appellant was charged and remanded in custody on 18th of August 2005 and the trial completed when he was convicted on the 14th of November 2006, some 5 months later, and from commission of the offence some 19 months. No reasonable explanation has been advanced as to the cause of the delay.

13. It is clear that delay in bringing a case against an accused should be an important determining factor in mitigation. In the case of R-v-Lawrence ([2]), Lord Hailsham said at p 517.

"My Lords, it is a truism to say that justice delayed is justice denied. But it is not merely the anxiety and uncertainty in the life of the accused, whether on bail or remand, which are affected. Where there is delay the whole quality of justice deteriorates. Our system depends on the recollection of witnesses, conveyed to a jury by oral testimony. As the months pass, this recollection necessarily dims, and juries who are correctly directed not to convict unless they are assured of the reliability of the evidence for the prosecution, necessarily tend to acquit as this becomes less precise, and sometimes less reliable. This may also affect defence witnesses on the opposite side".

14. The court is of the opinion that a delay in processing a case from the time of arrest to the term of imprisonment require a sentencing court to consider a substantial reduction in the penalty imposed. The Lower Court must always be mindful of this important factor. See Kaieti ([3]) –v-R

Comparable Sentence

15. The court is of the view that it is critically important for the court to consider comparable sentence imposed in this jurisdiction to similar offence. There are clearly several cases of similar circumstance available to the Learned Magistrate to consider in arriving at an appropriate sentence. See ([4]) R-v-Alick Sira and Others Augustine Laui-v-DPP and Ani-v-R.

Principle of Totality

16. The principle of totality has been long accepted to be good law by courts in this jurisdiction and other jurisdiction. The court is required to apply the principle in offences of similar circumstances to arrive at a reasonable sentence in the circumstance. In Stanley Bade-v-R, Ward CJ explained

"It is clear that this sentence offends the principle of totality. The first can be simply described as the "single transaction" test that provides that where a defendant is being sentenced for a number of offences that are similar in nature or cause harm to the same victim, it is appropriate to apply concurrent penalties. The second aspect of the principle is that a Court must examine the total of the penalties imposed for multiple offences and consider whether or not it is "substantially over the normal level of sentence appropriate to the most serious offence for which the accused is being sentenced ..." Ward CJ went on to say that the Court should also consider a reduction of the sentence if the total would constitute a "crushing" penalty in the particular circumstances of the defendant".

Consecutive Concurrent Sentence

17. The court is of the view that the offence arise out of a single transaction, each count relate to the drafting and sentencing of threatening letters to various people. The offence occurred over a 3 months period and purported to be from the same author. It is clear the Learned Magistrate did not take these factors into consideration.

18. It is clear that by making the sentence imposed on the 5th of November 2006 consecutive, has resulted in a total sentence of six and a half years and when added to the 9 months imprisonment the appellant would have served 7 years and 3 months and clearly much greater than the normal punishment imposed for offence of this nature. Refer ([5]) Stanley Bade-v-R

19. The court is of the view that the Learned Magistrate has imposed a crushing sentence by failing to consider the total effect of the sentence imposed.

20. The court having carefully considered the submission by the appellant and the authority cited, and the response by the crown who accept that a lesser sentence might be appropriate in this circumstance. The court has further carefully considered the nature and the seriousness of the offence and is of the view that the Learned Magistrate has quiteproperly imposed a custodial sentence given the appellant had trial to extort money not only from the head of RAMSI who is leading a mission to restore law and order to this country, but the Prime Minister and a Minister of the Crown. A custodial sentence should send a clear warning to like minded persons that they will receive an immediate custodial sentence if convicted of such offence.

The court considers that the Learned Magistrate has erred in the exercise of his sentencing discretion and allows the application and quashes the sentence imposed by the Magistrate Court on the 15th November 2007.

ORDER

1. Allow the appeal

2. Quash the sentence imposed by the Central Magistrate Court on the 15^th November 2006 and substitute the following sentence.

Count 1: 2 years imprisonment

Count 2: 1 year imprisonment

Count 3: 1 year imprisonment

Count 4: 9 months

Count 5: 9 months

Count 2 to be served consecutively to Count 1, Count 3, 4 and 5 to be served concurrently to Count 1. All sentences to be served from date of original remand.

THE COURT

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^[1] [1996] SBCA 2
^[2] [1982] AC 510
^[3] [2007] SBHC, 93
^[4] [2005] SBHC, 53
^[5] Ibid